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SJC-10944

COMMONWEALTH vs. RYAN JONES.

Bristol. November 10, 2017. - February 20, 2018.

Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.

Homicide. Mental Impairment. Developmentally Disabled Person.

Constitutional Law, Sentence, Cruel and unusual punishment.

Practice, Criminal, Competency to stand trial, Sentence.

Indictment found and returned in the Superior Court

Department on August 17, 2006.

A hearing on the defendant's competency to stand trial was 

held before D. Lloyd Macdonald, J., and the case was tried 

before Gary A. Nickerson, J.

Brett J. Vottero for the defendant.

Shoshana E. Stern, Assistant District Attorney, for the 

Commonwealth.

GAZIANO, J. A Superior Court jury found the defendant 

guilty of murder in the first degree on theories of deliberate 

premeditation and extreme atrocity or cruelty in the death of 

Valerie Oransky on July 22, 2006. Prior to and during trial, 

the defendant maintained that he was not competent to stand 
2

trial due to an organic brain injury he had suffered as an 

infant and a current diagnosis of pervasive developmental

disorder not otherwise specified. The defendant was the subject 

of competency hearings before five different Superior Court 

judges, and was found competent to stand trial at the first, 

third, fourth, and fifth hearings. At trial, his defense was 

that he was not criminally responsible.

On appeal, the defendant argues that the judge who 

conducted his third competency hearing erred in finding him

competent to stand trial notwithstanding testimony from both 

prosecution and defense experts that the defendant was not 

competent. He also argues that a mandatory sentence of life in 

prison without the possibility of parole, imposed on a 

developmentally disabled individual, constitutes cruel and 

unusual punishment in violation of Federal and State 

constitutional rights. Finally, the defendant asks us to use 

our extraordinary power under G. L. c. 278, § 33E, to order a 

new trial or reduce the verdict. For the reasons that follow, 

we affirm the conviction and decline to exercise our authority 

to grant relief under G. L. c. 278, § 33E.

1. Procedural history. In August, 2006, a grand jury 

indicted the defendant on one charge of murder in the first 

degree. He was arraigned in the Superior Court in September, 

2006, and pleaded not guilty. In October, 2007, defense counsel 
3

filed a motion seeking an examination of the defendant for 

competency pursuant to G. L. c. 123, § 15 (a). The defendant 

was evaluated for competency in December, 2007, and was found 

competent to stand trial. In January, 2008, the defendant was 

committed to Bridgewater State Hospital (Bridgewater) for 

evaluation pursuant to G. L. c. 123, § 15 (b), after providing 

notice that he intended to rely on a defense of a lack of 

criminal responsibility. In February, Bridgewater sought an 

extension of the commitment, pursuant to G. L. c. 123, § 15 (b). 

In January, 2009, shortly before the defendant's then-scheduled 

trial, the judge who was to have been the trial judge ordered 

the defendant again committed to Bridgewater for observation, 

pursuant to G. L. c. 123, § 15 (b). Later that month, the 

Department of Mental Health filed a motion for an extension of 

the commitment. That motion was allowed. In March, 2009, 

following a competency hearing, a different judge found the 

defendant not competent to stand trial, stayed the trial, and 

ordered the defendant to be held in the Bristol County house of 

correction for a period of six months, with a status hearing to 

be conducted at that point. In October, 2009, the Commonwealth 

sought a competency evaluation, and the judge who had ordered 

the defendant committed in January, 2009, again ordered him

committed to Bridgewater for observation. In February, 2010, 

after a competency hearing, that judge found the defendant 
4

competent to stand trial. In August, 2010, after a subsequent 

evaluation, another judge found the defendant competent. During 

the course of the trial in October, 2010, the trial judge (who 

had not previously been involved in the case) ordered the 

defendant evaluated for competency based on his behavior in the 

court room and in a holding cell in the court house. The judge 

then found the defendant competent. At the close of the 

Commonwealth's case, and again at the close of all the evidence, 

the defendant moved for a required finding of not guilty by 

reason of insanity.

Overall, the defendant was the subject of four competency 

hearings prior to trial, and a fifth competency hearing during 

trial. He was found competent to stand trial after the first 

hearing, incompetent at the second hearing, and competent at the 

third, fourth, and fifth hearings.1

The judge instructed the jury on murder in the first degree 

on theories of deliberate premeditation and extreme atrocity or

cruelty, murder in the second degree, manslaughter, and the 

defense of not guilty by reason of insanity. The jury convicted 

 

1 Further details of the competency proceedings are 

discussed infra, in our consideration of the defendant's 

challenge of the finding of competency at his third hearing.
5

the defendant of murder in the first degree on theories of 

deliberate premeditation and extreme atrocity or cruelty.2

2. Trial. We recite the facts the jury could have found, 

reserving some facts for later discussion.

a. Commonwealth's case. In July, 2006, the defendant was 

working as a dishwasher at a restaurant in Dartmouth. He had 

been working at the restaurant for more than three years, and 

his performance was generally satisfactory, but he sometimes had 

disputes with the manager (victim) over his use of the 

dishwasher to wash pots and pans. The defendant was supposed to 

use the dishwasher for silverware, glasses, and dishes, but was 

to wash pots and pans by hand. The victim repeatedly told the 

defendant not to put the pots and pans in the dishwasher. He 

often would do so anyway, and undertook various methods to 

conceal this from the victim. The two argued about the use of 

the dishwasher on many occasions.

At some point, the defendant began to express his anger 

about the victim's instructions on dishwashing to other 

employees. The defendant told one coworker, "I'm going to kill 

that f'ing B." Another coworker reported that, at least once a 

week, the defendant made gestures such as holding up his middle

finger behind the victim's back. Another coworker said that the 

 

2 At sentencing, the judge ordered that prison authorities 

be apprised of the defendant's mental condition.
6

defendant would "have a bung[e]e cord in his hand and he would 

snap it like he was going to choke [the victim] with it." 

Approximately two weeks before the stabbing, the defendant told 

one of his coworkers that he was going to take the victim to the 

bathroom early in the morning before the restaurant got busy and 

stab or strangle her. Several of the restaurant employees 

reported this statement to the victim, but she interpreted it as 

a joke.

On July 22, 2006, the defendant arrived at work earlier 

than he did ordinarily. He told the victim that something was 

wrong with one of the toilets, and they walked toward the 

women's restroom. Shortly thereafter, the defendant left the 

restroom and told a coworker that she should telephone 911 

because someone had come through the back door with a knife and 

had stabbed the victim. By the time paramedics arrived, the 

victim was not breathing. She had been stabbed multiple times, 

strangled, and beaten. The medical examiner determined that the 

cause of death was multiple stab wounds, with injury to the

aorta, lung, and kidney, and blunt trauma with brain contusions. 

A knife, a bungee cord, and a pipe from the dishwasher were 

found in the bathroom stall where the victim's body was found. 

A membership card for a wholesale club with the name of someone 

who did not work for the restaurant also was found on the floor 

near the victim.
7

While many of the defendant's coworkers were visibly upset 

at news of what had happened to the victim, the defendant was

described as being calm. One of his coworkers noticed that he 

had blood spots on his face and glasses and was hiding his left 

hand. The defendant told some coworkers and the investigating 

officers that the perpetrator was a black man wearing a white 

shirt, black pants, a dark hooded sweatshirt, white sneakers, 

leather gloves, and a black mask. He said that the man had come 

through the back door with a knife and initially tried to stab 

him, before stabbing the victim and running out the back door. 

Some of the defendant's coworkers immediately left the 

restaurant to look for the perpetrator; they were unable to find 

anyone matching the defendant's description. A police officer 

with a canine trained to track scents also was unable to locate 

the suspect the defendant had described.

Several restaurant employees had seen the defendant heading 

toward the bathroom with the victim, and the investigation 

almost immediately focused on the defendant. Dartmouth police 

officers brought the defendant to the police station on the day 

of the stabbing and interviewed him for a number of hours. The

defendant initially told police the same thing he had said at 

the scene, that an unknown man had burst in through the back 

door and stabbed the victim. The defendant had visible cuts on 

one hand and on his left side, which he said he had sustained 
8

when he attempted to defend himself from the victim's assailant. 

Ultimately, after what the investigating officer described as 

"confrontational" questioning, the defendant told police that he 

had stabbed the victim; it was a "mistake," but he did not know 

"what else . . . he [was] going to do" because she kept 

"nagging" him.

Deoxyribonucleic acid (DNA) tests on the blood found on the 

defendant's glasses, socks, and watch matched the victim. The 

defendant was a potential contributor to blood found on the 

knife, a handicapped stall in the women's bathroom that had its 

own sink, and the wholesale club card.

b. Defendant's case. After the Commonwealth rested its 

case-in-chief, Dr. Ronald Ebert, a forensic psychologist,

testified as to the defendant's lack of criminal responsibility 

on the day of the homicide. The defendant's father also 

testified to the defendant's medical history, his developmental 

issues, and his attendance at special education courses 

throughout his schooling.

The father provided background information on the 

defendant's mother's medical condition during pregnancy (a 

uterine infection), the defendant's hospitalization and coma as 

a result of spinal meningitis when he was six months old, and 

the first signs of the defendant's developmental deficits, when 

he was approximately two and one-half years old. The father
9

described the defendant as testing above age level for certain 

skills and "well behind" for others. Although he was placed in 

a special needs program, his ability to communicate verbally 

with others was "minuscule" and he was resistant to change. The 

defendant's seizure disorder first became apparent when he was 

in first or second grade. The defendant resisted taking his 

seizure medication and was hospitalized at least three times 

because of seizures.

In elementary school, the defendant would at times act 

inappropriately, throwing tantrums and sometimes barking and 

crawling around on all fours. The defendant was prescribed 

medication for attention deficit disorder. In fourth grade, the 

defendant transferred to a new school, where he was regularly 

bullied and beaten up by older students. After that, the 

defendant began to shut down and interacted with others even 

less. The defendant's parents were separated when he was ten 

years old, and were divorced when he was thirteen; after the 

separation, he lived primarily with his mother. In high school, 

also in a special needs program, the defendant had "decent" 

grades and did well in writing, while still demonstrating

difficulties with verbal communication.

After graduation, the defendant worked for brief periods at 

a number of jobs that he obtained through an agency that helped

disabled people get jobs and then provided job coaching. He 
10

also qualified for supplemental security income benefits because 

of his development delays and seizure disorder. The dishwasher 

position at the restaurant was the defendant's first long-term 

job. The defendant's father drove him to work in the morning,

and his mother picked him up in the afternoon; his father picked 

him up when his mother could not. The defendant's father would 

take the defendant to a movie almost every week and noted that

there were times when the defendant was unable to distinguish

between the fictional people and events in the movies and 

reality.

Ebert testified to the defendant's medical and educational 

history, and to the defendant's probable mental state at the 

time of the crime. Based on interviews with the defendant, 

reviews of past records, neurological testing, and other 

information, Ebert concluded that, at the time of the stabbing,

the defendant had been suffering from a mental defect that 

impaired his ability to conform his conduct to the law or to 

appreciate the criminality of his actions. Ebert testified that 

the defendant suffers from pervasive developmental disorder not 

otherwise specified, which is a variation of autism.3 Although 

 

3 The version of the Diagnostic and Statistical Manual of 

Mental Disorders in effect at the time of the defendant's 

diagnosis, the DSM-IV, defines pervasive developmental disorder 

not otherwise specified as
11

there was evidence that the defendant had planned the crime in 

advance, it was a result of his disability, and he had been 

unable to control his thought processes or behavior.

In rebuttal, the Commonwealth called Dr. Karin Towers, a 

forensic psychologist who also had interviewed the defendant and 

had reviewed the relevant records while working as a forensic 

evaluator at Bridgewater. Towers testified that, in her 

opinion, the defendant understood the wrongfulness of his 

actions and had substantial capacity to conform his conduct to 

the requirements of the law despite his pervasive developmental 

disorder. She noted that the defendant had made decisions to 

take the victim into the bathroom where no one could see what 

was happening and to fabricate the story of the unknown 

assailant. The defendant also told Towers that he had 

 

"a severe and pervasive impairment in the development of 

reciprocal social interaction associated with impairment in 

either verbal or nonverbal communication skills or with the 

presence of stereotyped behavior, interests and activities 

where the criteria are not met for a specific Pervasive 

Developmental Disorder, Schizophrenia, Schizotypal 

Personality Disorder, or Avoidant Personality Disorder."

American Psychiatric Association, Diagnostic and Statistical 

Manual of Mental Disorders 84 (4th ed. 2000).

The DSM-IV indicates that "this category includes 'atypical 

autism.'" Id. The most recent edition of the Diagnostic and 

Statistical Manual of Mental Disorders, the DSM-V, notes that 

"[i]ndividuals with a well-established DSM-IV diagnosis of . . . 

pervasive developmental disorder not otherwise specified should 

be given the diagnosis of autism spectrum disorder." American 

Psychiatric Association, Diagnostic and Statistical Manual of 

Mental Disorders 51 (5th ed. 2013).
12

considered whether to take the knife with him or to leave it,

and that, previously, he had controlled his anger toward the 

victim.

3. Discussion. In this direct appeal, the defendant 

raises two claims. First, he challenges the finding that he was 

competent to stand trial. He focuses particularly on the third 

competency hearing, and contends that it was error for the judge 

to find him competent given that both the prosecution and 

defense experts testified that he was not competent. Second, 

the defendant challenges the imposition of a mandatory sentence 

of life imprisonment without the possibility of parole on a 

developmentally disabled person; he argues that such a sentence

is a violation of the Eighth and Fourteenth Amendments to the 

United States Constitution and art. 26 of the Massachusetts 

Declaration of Rights.

a. Finding of competency. The defendant specifically 

challenges the finding of competency after the third hearing. 

To review adequately the appropriateness of the finding of 

competency to stand trial at the third hearing, it is necessary 

to consider the psychiatric evaluations, the previous hearings, 

and testimony prior to the judge's decision, as well as the two 

competency hearings that took place after the third hearing.

i. Initial evaluations and proceedings. Following his 

arraignment, the defendant was ordered to be examined for 
13

competency pursuant to G. L. c. 123, § 15 (a). In anticipation 

of the competency hearings, the defendant met with multiple 

clinicians, who also reviewed his medical and educational 

history. Notably, the defendant contracted spinal meningitis 

when he was six months old; he was hospitalized for several 

weeks, first in a "stupor" and later in a coma. The illness 

resulted in permanent, organic brain injury. In addition, he 

has suffered from a seizure disorder since he was a very young 

child. While the defendant has tested as being in the 

borderline to low-average range on intelligence quotient (IQ)

tests, he has demonstrated significant impairment in language 

processing and verbal communication and understanding from the 

age of two years old. He has had difficulty in interacting with 

people, was bullied as a child because of his lack of social 

skills and inability to communicate, and exhibited outbursts and 

uncontrollable behavior as a child. The defendant initially was 

diagnosed with attention deficit disorder and oppositional

defiant disorder, and was treated with medication for 

hyperactivity. The defendant attended special education classes 

throughout his school career, but was able to graduate from high 

school.

The general consensus of all the experts who testified at 

the competency hearings, as well as many of the clinicians who 

examined him as a child and as a teenager, was that the 
14

defendant suffers from what is now known as "pervasive 

developmental disorder not otherwise specified."

Ebert evaluated the defendant in January, 2007, at the 

request of the defendant's attorney; Ebert's October, 2007,

report was considered at all the pretrial competency hearings. 

Ebert also referred the defendant to Dr. Nancy Hebben for a 

neuropsychological evaluation; Hebben conducted an evaluation of 

the defendant in May, 2007. Ebert testified at the second, 

third, and fourth competency hearings, and at trial, on behalf 

of the defendant. Dr. Karin Towers and Dr. Sara Beszterczey 

performed evaluations as ordered by the court; their reports 

were also reviewed in conjunction with each of the competency 

hearings.

Hebben administered a series of tests during the 

neuropsychological evaluation, which she described in her 

report. The defendant tested "low normal" or "borderline" in 

many areas of cognitive functioning, but demonstrated a 

significant deficit in verbal comprehension ability. 

Considering all of the results in concert, she concluded that

the defendant's most appropriate diagnosis was pervasive 

developmental disorder not otherwise specified, given his 

impairments in verbal comprehension and social interaction. 

Ebert had reached the same diagnosis. He also determined that 

the defendant suffered from deficits in receptive and expressive 
15

language, poor social skills, and rigidity in his behavior and 

interests. Ebert concluded that, because of these impairments 

and the defendant's inability rationally to understand the 

proceedings against him and to assist his attorney, the 

defendant was not competent to stand trial. While the defendant 

could explain theoretically some of the roles of the 

participants at a trial, he had difficulty in attempting to 

apply those general concepts to his own situation, suggesting, 

for example, that if he apologized for his behavior he could go 

home.

At the first competency hearing, in December, 2007, a court 

clinician, Dr. Barbara McElroy, testified, based on a brief 

interview with the defendant and the reports by Ebert and 

Hebben, that the defendant had a factual and rational 

understanding of the proceedings against him and therefore was 

competent to stand trial. McElroy indicated that she had two 

main concerns: the defendant was not aware of the specific 

charges he was facing, and did not seem to understand the 

concept of plea bargains. McElroy concluded, however, that her 

concerns were minor overall, and that they could be addressed 

with continued education of the defendant by his attorney. To 

support this finding, she noted that the defendant had a better 

understanding when she met with him than he did when he 
16

initially was evaluated by Ebert in January, 2007. The judge 

found the defendant competent.

The case was assigned for trial in January, 2009. At the 

end of December, 2008, the defendant requested another 

competency examination. After an evaluation, a licensed 

psychologist recommended further evaluation, and the defendant 

was committed to Bridgewater for observation, pursuant to G. L. 

c. 123, § 15 (b). In January, 2009, the Department of Mental 

Health moved to extend the commitment, and a different Superior 

Court judge allowed the motion. In February, 2009, Towers

conducted an evaluation of the defendant as ordered by the court

In February, 2009, Towers issued a report in which she noted 

that the defendant possessed a superficial understanding of 

court proceedings, but that it was unclear whether he truly 

understood. A second competency hearing was scheduled.

At the second hearing, in March, 2009, Towers and Ebert

both testified that the defendant had a basic factual 

understanding, but that they were concerned about his ability to 

make decisions rationally regarding his case. At times, the

defendant would answer their questions without fully 

understanding what was being asked. Towers opined that the 

defendant might be able to overcome his deficits through 

continued education. Ebert disagreed, testifying that, although 

the defendant could repeat information given to him, his 
17

processing of the information and his beliefs would not 

necessarily change in response to new information. As an 

example, Ebert referred to the defendant's belief that he would 

be able to go home if he apologized to the judge. The judge 

noted the difference in the experts' opinions as to possible 

future competency, but concluded based on the consensus of 

Towers and Ebert that the defendant was at that time not 

competent to stand trial.

ii. Determination of competency at the third hearing. The 

third competency hearing took place over the course of three 

days in January and February, 2010. In October, 2009, 

Beszterczey performed an evaluation of the defendant as ordered 

by the court. She and Ebert testified at the hearing, along 

with three of the defendant's former coworkers and the 

defendant's former job coach. The lay witnesses testified that,

other than his decision to put pots and pans in the dishwasher, 

the defendant was able to perform his job well, and that they 

occasionally would have casual conversations with him. Ebert 

again opined that the defendant was not competent to stand 

trial. Beszterczey commented that she believed the defendant 

might not be cooperating fully, interfering with her ability to 

complete a full competency interview, but she did not think that 

any potential malingering necessarily meant that the defendant 

was competent. She concluded that the defendant was presenting 
18

with significant deficits in abilities associated with 

competency to stand trial, but that it was possible he could 

become competent with further education.

In a nine-page memorandum and order, a judge who had not 

previously been involved in the case ruled that the defendant 

was competent to stand trial. The judge pointed to the 

defendant's low-average IQ score; his "satisfactory three[-]year 

job history, where he impressed his [coworkers] by his diligence 

and essential normality"; the experts' testimony that the 

defendant's diagnosis had not changed since the time of the 

killing; and the comments in Beszterczey's evaluation about 

potential malingering.

iii. Final pretrial competency hearing. Approximately six 

months later, during a hearing before a different judge, defense 

counsel requested another competency hearing. The defendant was 

examined for competency for a fourth time at the end of August, 

2010. Dr. Leah Logan, a court-based clinical psychologist,

testified after reviewing the defendant's records and meeting 

with him for approximately one hour. Logan concluded that, 

while the defendant had needed some questions explained again in 

simpler terms, he did not have significant deficits, and there 

was no evidence that his condition had deteriorated since the 

previous hearing. She suggested that any deficits in 

understanding the defendant did have could be overcome through 
19

communication with his attorney, repetition and further 

explanation, and sufficient time for him to process and 

understand questions he might be asked on cross-examination. 

The judge determined that there had been no material change 

since the previous hearing, and therefore that the defendant was 

still competent to stand trial. He found that the defendant's 

acknowledged mental impairments did not affect his competency,

and that any potential issues could be addressed through 

preparation prior to trial.

iv. Midtrial competency hearing. On the third day of 

trial, after the audio-video recording of the defendant's 

interrogation was played for the jury, a court officer reported 

to the judge that, during the lunch break, the defendant had 

begun apparently interacting with an invisible dog. The judge 

became concerned that the defendant might be decompensating, and

decided to bring in the court clinician to examine the 

defendant, and to review whatever records the clinician felt 

necessary, in order to determine whether the defendant remained 

competent. On inquiry by the judge, the defendant's attorney 

observed that the defendant seemed to "decompensate" more in 

times of stress, and had been manifesting small signs of stress, 

such as writing notes to himself and repeating words, while 

sitting at counsel table during and after the playing of the 

recording of the interview.
20

The defendant was examined briefly by Logan. She testified 

that she thought the defendant wanted the judge and the 

attorneys to believe that he was seeing a dog, but that she 

thought he was not actually having a visual hallucination. She 

concluded that the defendant was simply experiencing stress, and 

provided some recommendations for measures that the defendant 

might use to handle the trial environment. The judge concluded, 

with an oral explanation on the record, that the Commonwealth 

had fulfilled its burden of proving competency by a 

preponderance of the evidence. In reaching that finding, he 

noted that Logan was a clinical psychologist with forensic 

experience who was aware of the defendant's history. The judge 

additionally relied on his own observations of the defendant 

over the course of the trial, as well as during the competency 

hearing, and the reports and findings from the previous 

competency hearings.

v. Whether the Commonwealth established the defendant's 

competency to stand trial. The defendant appeals from the

finding of competency at the third hearing; he contends that the 

judge abused his discretion by disregarding the experts' 

consensus that the defendant was not at that time competent to 

stand trial. The defendant additionally contends that the judge 

inappropriately relied on evidence from lay witnesses, who could 

testify to the defendant's behavior only at the time of the 
21

incident and not at the time of the competency hearing, and that 

the judge used an improper balancing test by considering the 

public interest in the prosecution of those who commit crimes to 

be of equal significance to the due process concern of 

competency to stand trial.

"It has long been accepted that a person whose mental 

condition is such that he lacks the capacity to understand the 

nature and object of the proceedings against him, to consult 

with counsel, and to assist in preparing his defense may not be 

subjected to a trial." Commonwealth v. Crowley, 393 Mass. 393,

398 (1984), quoting Drope v. Missouri, 420 U.S. 162, 171 (1975). 

In the Commonwealth, G. L. c. 123, § 15, allows the examination 

of a defendant whose competency is called into question.

4 If a 

trial judge doubts whether a defendant is competent to stand 

trial, he or she must, on his or her own initiative, conduct a 

 

4 General Laws c. 123, § 15 (a), provides, in relevant part:

"Whenever a court of competent jurisdiction doubts 

whether a defendant in a criminal case is competent to 

stand trial or is criminally responsible by reason of 

mental illness or mental defect, it may at any stage of the 

proceedings after the return of an indictment or the 

issuance of a criminal complaint against the defendant, 

order an examination of such defendant to be conducted by 

one or more qualified physicians or one or more qualified 

psychologists. . . . When an examination is ordered, the 

court shall instruct the examining physician or 

psychologist in the law for determining mental competence 

to stand trial and criminal responsibility."
22

full hearing.

5 See Commonwealth v. Nickerson, 388 Mass. 246, 250

(1983); Commonwealth v. Scionti, 81 Mass. App. Ct. 266, 272-273

(2012). At a competency hearing, the judge should determine

 

5 General Laws c. 123, § 15 (b), (c), provide, in relevant 

part:

"(b) After the examination described in paragraph (a), 

the court may order that the person be hospitalized at a 

facility or, if such person is a male and appears to 

require strict security, at the Bridgewater state hospital, 

for a period not to exceed twenty days for observation and 

further examination, if the court has reason to believe 

that such observation and further examination are necessary 

in order to determine whether mental illness or mental 

defect have so affected a person that he is not competent 

to stand trial or not criminally responsible for the crime 

or crimes with which he has been charged. . . . If, before 

the expiration of such twenty day period, an examining 

qualified physician or an examining qualified psychologist 

believes that observation for more than twenty days is 

necessary, he shall so notify the court and shall request 

in writing an extension of the twenty day period, 

specifying the reason or reasons for which such further 

observation is necessary. Upon the receipt of such 

request, the court may extend said observation period, but 

in no event shall the period exceed forty days from the 

date of the initial court order of hospitalization; 

provided, however, if the person requests continued care 

and treatment during the pendency of the criminal 

proceedings against him and the superintendent or medical 

director agrees to provide such care and treatment, the 

court may order the further hospitalization of such person 

at the facility or the Bridgewater state hospital.

"(c) At the conclusion of the examination or the 

observation period, the examining physician or psychologist 

shall forthwith give to the court written signed reports of 

their findings, including the clinical findings bearing on 

the issue of competence to stand trial or criminal 

responsibility. Such reports shall also contain an 

opinion, supported by clinical findings, as to whether the 

defendant is in need of treatment and care offered by the 

[Department of Mental Health]."
23

whether the defendant has "sufficient present ability to consult 

with his lawyer with a reasonable degree of rational 

understanding and . . . a rational as well as factual 

understanding of the proceedings against him."6 Commonwealth v. 

Vailes, 360 Mass. 522, 524 (1971), quoting Dusky v. United 

States, 362 U.S. 402, 402 (1960). The Commonwealth has the 

burden to prove competency by a preponderance of the evidence. 

Crowley, 393 Mass. at 400-401. A judge's competency 

determination is reviewed for abuse of discretion. See 

Commonwealth v. Hung Tan Vo, 427 Mass. 464, 468-469 (1998).

In reaching such a determination, judges may consider their 

own "observations of the defendant's demeanor and behavior

. . . , reports of psychiatric examinations of the defendant, 

statements to the judge about the defendant's conduct and mental 

condition, and the testimony of expert witnesses." Commonwealth

v. Hill, 375 Mass. 50, 54-55 (1978). Observations made closest 

 

6 General Laws c. 123, § 15 (d), provides, in relevant part:

"If on the basis of such reports the court is 

satisfied that the defendant is competent to stand trial, 

the case shall continue according to the usual course of 

criminal proceedings; otherwise the court shall hold a 

hearing on whether the defendant is competent to stand 

trial; provided that at any time before trial any party to 

the case may request a hearing on whether the defendant is 

competent to stand trial. A finding of incompetency shall 

require a preponderance of the evidence. If the defendant 

is found incompetent to stand trial, trial of the case 

shall be stayed until such time as the defendant becomes 

competent to stand trial, unless the case is dismissed."
24

to the time of trial are the most appropriate in determining 

competency. See Commonwealth v. Companonio, 445 Mass. 39, 52 

(2005) ("The time frame for determining a defendant's competency 

to stand trial is 'the condition of the defendant at the time of 

trial'" [citation omitted]).

While it may be useful for a judge to hear opinions from 

medical experts, the determination is ultimately a legal, not a 

medical, judgment. See Kansas v. Hendricks, 521 U.S. 346, 359 

(1997) (noting that legal definition of "competency" need not 

mirror its medical definition). "The law should not, and does 

not, give the opinions of experts on either side of . . . [an] 

issue the benefit of conclusiveness." Commonwealth v. DiMinico, 

408 Mass. 230, 235 (1990), quoting Commonwealth v. Lamb, 372 

Mass. 17, 24 (1977). Cf. Commonwealth v. Kappler, 416 Mass. 

574, 579 (1993) (fact finders are not required to accept 

"uncontroverted testimony of experts"); Commonwealth v. Shelley, 

381 Mass. 340, 347 (1980) (fact finder is "not obliged to 

believe the testimony of any of the expert witnesses").

The judge who conducted the third competency hearing had 

the authority to exercise his discretion and choose not to 

credit the experts' conclusions that the defendant was not 

competent. He used the correct standard to determine 

competency, appropriately placed the burden on the Commonwealth

to prove competency by a preponderance of the evidence, and 
25

wrote a thorough memorandum explaining the reasons for his 

conclusion. Moreover, after that hearing, at subsequent 

hearings, two other judges found the defendant competent to 

stand trial. Because competency may be fluid and should be 

determined as close to trial as possible, it is most significant 

that the defendant was found competent in a hearing during the 

trial. In sum, we discern no error in the judge's determination 

at the third competency hearing.

b. Mandatory imposition of life sentence without 

possibility of parole on a developmentally disabled defendant. 

The defendant argues also that the mandatory imposition of a 

sentence of life imprisonment without the possibility of parole 

on a defendant who is developmentally disabled constitutes cruel 

and unusual punishment under the Eighth and Fourteenth 

Amendments and cruel or unusual punishment under art. 26. The 

defendant asks that we extend the United States Supreme Court's 

holding in Atkins v. Virginia, 536 U.S. 304, 321 (2002), that 

imposition of the death penalty on a person with an intellectual

disability violates the United States Constitution,

7 to 

imposition of a mandatory sentence of life in prison without the 

 

7 Atkins v. Virginia, 536 U.S. 304 (2002), uses the language 

"mentally retarded." That term subsequently has been replaced 

by the term "intellectually disabled." See Hall v. Florida, 134 

S. Ct. 1986, 1990 (2014); Commonwealth v. St. Louis, 473 Mass. 

350, 357 (2015); Pub. L. 111–256, 111th Cong., 124 Stat. 2643 

(2010) (Rosa's Law).
26

possibility of parole on defendants with developmental 

disabilities.

8

 

8 General Laws c. 123B, § 1, distinguishes between 

intellectual and developmental disabilities as follows:

"[A] [p]erson with a developmental disability [is] (1) 

an individual [five] years of age or older with a severe, 

chronic disability that: (i) is attributable to a mental 

or physical impairment resulting from intellectual 

disability, autism, [S]mith-[M]agenis syndrome or PraderWilli syndrome; (ii) is manifested before the individual 

attains age [twenty-two]; (iii) is likely to continue 

indefinitely; (iv) results in substantial functional 

limitations in [three] or more of the following areas of 

major life activity: (1) self-care; (2) receptive and 

expressive language; (3) learning; (4) mobility; (5) selfdirection; (6) capacity for independent living; and (7) 

economic self-sufficiency; and (v) reflects the 

individual's need for a combination and sequence of 

special, interdisciplinary or generic services, supports or 

other assistance that is of a lifelong or extended duration 

and is individually planned and coordinated; or (2) an 

individual under the age of [five] who has a substantial 

developmental delay or specific congenital or acquired 

condition with a high probability that the condition will 

result in a developmental disability if services are not 

provided. . . ."

"[A] [p]erson with an intellectual disability [is] a 

person who has an intellectual disability, characterized by 

significant limitations in both intellectual functioning 

and adaptive behavior as expressed in conceptual, social 

and practical adaptive skills and beginning before age 18, 

and consistent with the most recent definition provided by 

the American Association on Intellectual and Developmental 

Disabilities; provided, that in applying this definition 

the following shall be considered: (i) limitations in 

present functioning within the context of community 

environments typical of the individual's age, peers and 

culture; (ii) cultural and linguistic diversity and 

differences in communication, sensory, motor and behavioral 

factors; (iii) limitations often coexist with strengths 

within an individual; (iv) an important purpose of 

describing limitations is to develop a profile of needed 
27

In support of this argument, the defendant relies on cases 

from the United States Supreme Court holding that imposition of 

the death penalty on juveniles is unconstitutional, Roper v. 

Simmons, 543 U.S. 551, 578 (2005); that a mandatory sentence of 

life without the possibility of parole for nonhomicide offenses

committed by juveniles violates the Federal Constitution, Graham

v. Florida, 560 U.S. 48, 75 (2010); and that a mandatory 

sentence of life in prison without the possibility of parole for

juveniles who commit murder is unconstitutional, Miller v. 

Alabama, 567 U.S. 460, 470 (2012). We have extended the Court's 

holding in Miller, supra, in deciding that even the 

discretionary imposition of a sentence of life without the 

possibility of parole on juveniles is in violation of art. 26. 

See Diatchenko v. District Attorney for the Suffolk Dist., 466 

Mass. 655, 674 (2013), S.C., 471 Mass. 12 (2015).

The Commonwealth contends that the defendant's argument 

would require significant extrapolation from existing precedent, 

given that the defendant is not a juvenile and is not subject to

the death penalty; there is no precedent in this court or the 

United States Supreme Court concerning prison sentences for 

developmentally disabled individuals. Furthermore, the 

 

supports; and (v) with appropriate personalized supports 

over a sustained period, the life functioning of a person 

with an intellectual disability will generally 

improve . . . ."
28

Commonwealth argues, adults with intellectual or developmental 

disabilities may not have the same prospects for rehabilitation 

as do juveniles, whose brains have not yet fully matured. The 

Commonwealth maintains that much of the reasoning underlying the 

United States Supreme Court's and this court's jurisprudence on 

sentences for juveniles does not apply in this case because, 

unlike juveniles, who act impulsively and are unduly influenced 

by others due to their lack of maturity, the defendant has an 

immutable condition, did not act impulsively, and was not unduly 

influenced by others.

The Eighth Amendment and art. 26 "draw [their] meaning from 

the evolving standards of decency that mark the progress of a 

maturing society." Atkins, 536 U.S. at 311-312, quoting Trop v. 

Dulles, 356 U.S. 86, 101 (1958). See Diatchenko, supra at 669; 

Libby v. Commissioner of Correction, 385 Mass. 421, 435 (1982) 

("Article 26, like the Eighth Amendment, bars punishments which 

are 'unacceptable under contemporary moral standards'" [citation

omitted]). In deciding whether a punishment is cruel and 

unusual, courts look to "'objective indicia of society's 

standards' . . . to determine whether there is a national 

consensus against the sentencing practice at issue." Graham, 

560 U.S. at 61, quoting Roper v. Simmons, 543 U.S. at 563. See 

Good v. Commissioner of Correction, 417 Mass. 329, 335 (1994) 

("In divining contemporary standards of decency, we may look to 
29

State statutes and regulations, which reflect the public 

attitude as to what those standards are"). Courts also 

"determine in the exercise of [their] own independent judgment 

whether the punishment in question violates" contemporary moral 

standards to the extent that it is a constitutional violation. 

See Graham, supra.

"[T]he clearest and most reliable objective evidence of 

contemporary values is the legislation enacted by the country's 

legislatures" (quotations and citation omitted). Atkins, 536 

U.S. at 312. Courts that have addressed this issue to date have 

declined to extend Atkins, supra, and Miller, supra, to disallow 

mandatory sentences of life without parole for people with 

intellectual or developmental disabilities, largely in 

unpublished or unreported opinions. See State v. Little, 200 

So. 3d 400, 405 (La. Ct. App. 2016) (rejecting downward 

departure from mandatory sentence of life without parole for 

defendant with developmental disability). See also Pifer, Is 

Life the Same as Death?: Implications of Graham v. Florida, 

Roper v. Simmons, and Atkins v. Virginia on Life Without Parole 

Sentences for Juvenile and Mentally Retarded Offenders, 43 Loy. 

L.A. L. Rev. 1495 (2010).

This court has "the inherent authority to interpret [S]tate 

constitutional provisions to accord greater protection to 

individual rights than do similar provisions of the United 
30

States Constitution" (quotations and citation omitted). 

Diatchenko, 466 Mass. at 668. We did so in Diatchenko, supra at 

669, where we held that "the imposition of a sentence of life in 

prison without the possibility of parole for the commission of 

murder in the first degree by a juvenile under the age of 

eighteen is disproportionate not with respect to the offense 

itself, but with regard to the particular offender." In that 

case, we considered scientific evidence on adolescent brain 

development and how it may affect a juvenile's personality and 

behavior. Id. at 669-671.

Similarly, in Atkins, 536 U.S. at 318, the United States 

Supreme Court determined that intellectually disabled 

individuals "have diminished capacities to understand and 

process information, to communicate, to abstract from mistakes 

and learn from experience, to engage in logical reasoning, to 

control impulses, and to understand the reactions of others," 

leading them to be less culpable than other offenders. The 

Court therefore focused on two reasons categorically to exclude 

individuals with intellectual disabilities from execution. Id. 

at 318. First, neither justification for the death penalty, 

retribution or deterrence, applies to intellectually disabled 

defendants. Id. at 318-319. Because intellectually disabled 

individuals are less culpable, their actions do not merit that 

level of retribution, and their impairments make it less likely 
31

that they can be deterred by the possibility of the death 

penalty. Id. at 319-320. Second, intellectually disabled 

individuals may receive the death penalty more frequently than 

they should, based on the facts of their cases, because of the 

increased possibility of false confessions and the lesser 

ability of intellectually disabled defendants to make a 

persuasive showing of mitigation. Id. at 320-321. These 

concerns are less extreme, however, when an individual is facing 

a prison sentence, even when it is life without parole, than 

when an individual faces the death penalty.

At this time, we decline to extend Atkins, supra, and 

Miller, supra, either to eliminate sentences of life in prison 

without the possibility of parole for people with developmental 

disabilities or to require that such sentences be discretionary 

rather than mandatory. Whether it is cruel and unusual under 

the Eighth and Fourteenth Amendments or cruel or unusual under 

art. 26 to impose a mandatory sentence of life without parole on 

a person with an intellectual disability is a difficult question

that is not before us here, where the defendant has been 

diagnosed with a developmental disability.

c. Relief pursuant to G. L. c. 278, § 33E. The defendant 

asks that we exercise our extraordinary power pursuant to G. L. 

c. 278, § 33E, to order a new trial or reduce the verdict to 

murder in the second degree. After carefully reviewing the 
32

record pursuant to our duty under G. L. c. 278, § 33E, we 

decline to set aside the verdict or to reduce the degree of 

guilt.

Judgment affirmed.